Federal prosecutors considering sedition charges for rioters who stormed the U.S. Capitol are likely studying a 2010 case against Michigan residents who discussed starting a war with the government.
Nine members of the Hutaree militia, a Christian anti-government group, were the last Americans to face federal sedition charges. Prosecutors alleged the group planned to kill police officers and overthrow the federal government but the charges didn’t stick; U.S. District Court Judge Victoria Roberts acquitted all members of sedition in 2012.
Roberts determined prosecutors failed to show the Hutaree militia had concrete plans to carry out an attack. Nearly a decade later, legal experts say federal prosecutors have better odds of proving rioters planned to overturn the 2020 presidential election.
Federal law defines sedition as a conspiracy to overthrow the government, delay the execution of the law, or use force to seize U.S. property. Sedition is punishable by up to 20 years in prison.
Matthew Schneider, former U.S. Attorney for the Eastern District of Michigan, said prosecutors don’t need to prove rioters attempted a coup. Anyone who tried to stop the legal process of finalizing the presidential election could face sedition charges.
“People think of sedition as overthrowing the government, but that’s not actually what the law says,” Schneider said in an interview. “At the end of the day, the sedition charge does fit.”
Mike Rataj is a Detroit defense attorney who represented the Hutaree militia. Rataj, who has decades of experience in federal cases, said a key difference is the Hutaree had “big talk” about attacking police, but the Capitol rioters took action.
Rataj said there’s a clear opportunity to charge people who were trying to prevent the Electoral College vote from being certified.
“These idiots who stormed the Capitol, spurred on by Trump and his sycophants, were actually encouraging people to attack the Capitol, and stop the steal; stop the Electoral College count,” Rataj said in an interview.
Michel McDaniel, director of the Homeland Law program at Western Michigan’s Cooley Law School, said politicians and protesters spent weeks promoting a rally on Jan. 6 to “stop the steal.” Supporters of former President Donald Trump traveled to Washington, D.C. and marched toward the Capitol after he urged them to fight against the election result.
A violent mob broke through police barriers and occupied the building for several hours, delaying the certification of President Joe Biden’s victory. Five people were killed, including a Capitol Police officer.
“Absolutely, this is enough for sedition,” McDaniel said. “Is that overthrowing the government? No, maybe not, but it really would have caused a lot of harm to our belief in that government and it would have caused a lot of damage if it had been more successful.”
The government opened more than 400 criminal cases in the months after Jan. 6. Most were charged with assaulting police, destroying property or trespassing on restricted grounds. Seven men from Michigan were arrested as of April 8.
So far, prosecutors have not charged anyone with sedition. However, a federal prosecutor who was leading the criminal investigation said he believes there’s evidence to support sedition charges during an interview with “60 Minutes.”
Twenty-eight people face conspiracy charges. Prosecutors allege they plotted to stop Congress from certifying the Electoral College vote and obstruct police tasked with protecting the Capitol.
Federal prosecutors are trying to make the case that paramilitary groups like the Oath Keepers and Proud Boys planned to breach the Capitol. Federal court records allege members donned camouflaged combat uniforms and used military-style tactics to communicate during the riot.
People who aren’t members of paramilitary groups could also face sedition charges, Schneider said.
“A conspiracy is just two people or more who agree to commit a crime and take a step in that direction,” he said. “They don’t have to be associated in any way. They don’t all have to be members of the Proud Boys or some group. They can be completely separated.”
At the same time, Schnieder said there may be people who stormed the Capitol but didn’t plan to disrupt the Electoral College vote. It could be harder to prosecute people who argue they were caught up in the chaos.
“You can’t blend these two groups; if there’s one group of people who conspire to trespass and there’s another group who conspires to disrupt the vote, you can’t convict the people who just want to trespass of obstructing the vote,” Schneider said. “It’s almost like two separate conspiracies.”
Some of the Michiganders who were arrested talked about storming the Capitol in the weeks before Jan. 6, according to federal documents.
Karl Dresch, a Calumet resident facing five charges, posted on Facebook that he was preparing to go to Washington, D.C. and urged others to join him.
“NO EXCUSES! NO RETREAT! NO SURRENDER! TAKE THE STREETS! TAKE BACK OUR COUNTRY!” Dresch wrote on Facebook.
Macomb County residents Daniel Herendeen and Robert Schornak, who face five charges, allegedly discussed their dedication to attending Trump’s Jan. 6 “Stop the Steal” rally. Both men dressed in tactical gear. An informant who tipped off the FBI reported Herendeen showed off equipment he intended to take to the Capitol.
Anthony Williams, a Southgate resident facing three charges, posted several messages on Facebook about his plan to “storm the swamp.” In one message, Williams said “yep, we pissed and we coming to Congress.” He also encouraged others to “fight back.”
Michigan residents face a variety of charges that could result in lengthy jail sentences for disorderly conduct, violent entry of Capitol grounds and trespassing. Michael Foy, a Wixom resident charged with assaulting a police officer, could face up to 20 years in prison if convicted.
It’s unclear if any of that behavior clears the bar for sedition. McDaniel said the government is taking a “conservative approach” to pursuing charges so far.
That’s because the stakes are high. Sedition charges are rarely used and carry significant symbolic weight. Success would send a strong signal to extremists, McDaniel said, but failure could embolden anti-government groups that feel unfairly persecuted by the government.
“For it to truly to be a deterrent, you have to focus on what the activity really was and what the intent was,” McDaniel said. ”It’s not as great a deterrent to others if they see the government is unable to bring those charges, or if they’re unsuccessful. It could encourage them.”
McDaniel said prosecutors would be wise to study the failures of the 2010 Michigan sedition case.
The conspiracy case against Hutaree militia was primarily based on conversations involving David Stone Sr., the group’s founder. Rataj, the defense attorney, said the government failed to provide hard evidence.
Stone, who did not respond to a request for comment, allegedly made statements about killing police officers and the need to go to war in preparation for battle with the Antichrist. Stone is now the supervisor of Wheatland Township in Hillsdale County.
Hutaree militia members actively trained with military-style exercises and collected guns, ammunition and anti-government literature, according to federal court documents.
The first step of their alleged plan was to commit a violent act to draw the attention of police, then retreat to “rally points” where they would carry out other attacks against local and federal law enforcement officials. Federal prosecutors alleged the militia hoped to inspire a widespread uprising against the government.
Roberts, the federal judge, determined there was no specific agreement to carry out any attack.
Roberts, in a written order to acquit the militia members, determined a conspiracy to kill police officers is not the same as forcibly opposing the U.S. government. Talking about killing cops is protected by the First Amendment, the judge wrote.
All nine members, including six Michigan residents, two Ohio residents and an Indiana resident, were acquitted of the sedition charges. Three of the members, including Stone, pleaded guilty to weapons-related charges.
“A couple of white guys running around the woods with guns is pretty much the definition of deer season, and is not really illegal behavior by itself,” McDaniel said. “I say it that way to illustrate it was a difficult case … If the Hutaree case tells us anything, it’s that guys walking around the woods with guns, and big talk is not enough for sedition.”
Rataj said the Hutaree case has had an impact on how the government has approached potential seditious conspiracies since then.
“I just think that the government learned his lesson,” Rataj said. “They’re gonna be more circumspect when they bring a conspiracy charge. I think that they’re smart in the way that they brought these (Jan. 6) indictments in federal court.”
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